The Shifting Requirements of Care and Control: How Long Can the SCC Hold Off?
Since the advent of the Canadian Charter of Rights and Freedoms [“Charter“], impaired driving jurisprudence has developed into a complex labyrinth of exceptions. The Targeting Violent Crime Act, Bill C-2, has recently been drafted by Parliament, and parts of the bill appear to have the effect of narrowing this wide expanse of case law significantly. However, the bill has not yet received Royal Assent, and it remains to be seen whether its predicted impact will be felt upon this area of the law. Interestingly, the Supreme Court of Canada (“SCC”) has recently denied leave to appeal from R v LeGrow, 2007 NSCA 74, where the contentious issue on appeal was one such muddy element of impaired driving jurisprudence, that of care and control of a motor vehicle. In my opinion, the SCC made the right decision in denying Mr. LeGrow leave to appeal in this case; yet once the case law in the area is analyzed, it becomes clear that the SCC will inevitably be called upon to clarify this aspect of the law in the near future.
The Nova Scotia Court of Appeal (“NSCA”) was quick to dismiss Mr. LeGrow’s appeal, and provided scant reasons for its decision. All the NSCA explained was that, “[h]aving reviewed the record and the decision under appeal and considered the argument of the appellant, we are unable to find that [the trial judge] erred in law.” Upon reviewing the trial judge’s reasons, the NSCA’s findings prove sound. The trial judge’s overview of the case law defining care and control, however, demonstrates that this area is far from clear.
At trial, Mr. LeGrow was alleged to have had “the care and control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol,” contrary to s. 253(a) of the Criminal Code. Mr. LeGrow, the owner and operator of a marine towing service, claimed that he was on his way to Yarmouth, N.S. to tow a barge when he was arrested. He had taken the opportunity to visit a business acquaintance, the manager of a local inn, during his travels. He asked his friend for a room to rest, as he felt tired, but he was unable to sleep; when he returned, his friend offered him a beer. He claimed to have consumed two beers in forty-five minutes. After leaving the inn, he purchased two shot bottles of Smirnoff vodka, and he explained that they were for an employee whom he was to meet later. But after Mr. LeGrow began driving, he again became tired. He parked his vehicle close to the guardrail with the driver’s side wheels partly on the pavement, and stopped the engine.
Mr. LeGrow claimed that he abandoned care and control of the vehicle when he threw his keys under his seat, prior to his falling asleep in the driver’s seat, and that he did not regain this control before the police arrived. Yet when Mr. LeGrow was approached by the police at approximately 10:00 pm, his truck’s motor was running, and he was sitting in the driver’s seat in a reclined position. Mr. LeGrow was found to be impaired by the attending officers, while in care and control of his vehicle.
The Criminal Code, RSC 1985, c C-46, provides for a presumption of care and control when the accused is in the driver’s seat, under section 258(1)(a). The prosecution need only prove that the accused was in the driver’s seat; then the accused “shall be deemed to have had the care or control of the vehicle … unless the accused establishes that the accused did not occupy that seat … for the purpose of setting the vehicle … in motion.” The trial judge acknowledged that a dictionary definition of “care” and “control” would cast too wide a net over drivers, and may catch those who are parked in a driveway or garage while in the driver’s seat, for example. Accordingly, he proceeded to narrow the provision’s focus by pointing to relevant jurisprudence that adds the requirement of the risk of danger, either by putting the vehicle in motion or in “some other way” compounding this risk. The increased specificity comes from cases such as R v Wren, 47 OR (3d) 544, The Queen v Toews,  2 SCR 119, and Ford v The Queen,  1 SCR 231.
The standard of care and control appears to safely apply to Mr. LeGrow’s situation. Though Mr. LeGrow claimed that he was not in care and control of his vehicle, the added “risk of danger” element is present. In addition to his vehicle’s inculpatory, precarious positioning on the roadside (versus the trial judge’s example of a car parked in a garage), the trial judge noted that the engine was started after Mr. LeGrow had been parked for some time. Mr. LeGrow awoke after 9:30 pm because he was cold, and he retrieved the keys in order to start the engine for warmth. This operation of the vehicle’s equipment was characterized by the judge as increasing the risk of putting the vehicle in motion. Understandably, Mr. LeGrow was found to be in care and control of his vehicle.
The trial judge’s reasoning appears to be well-founded, but when he elucidates the principle of care and control from the common law, elements of the offence grow increasingly undefined. From R v Hannemann,  O.J. 1686, the judge cites that “turning on the ignition amounts to a substantial act … almost always characterized as an act of care or control.” But in that case, the accused was actually found to have rebutted the presumption, as he planned to spend the night in his vehicle and even made arrangements for a colleague to pick him up the next morning. The trial judge zones in on the fact that the accused removed his socks and unhitched his pants (emphasis from original); apparently, the status of one’s wardrobe speaks volumes as to one’s control over a motor vehicle. The fact that the accused in Hannemann also had the motor running for heat, as well as a seat belt secured, did not trouble the Hannemann court in finding that he rebutted the presumption of care and control. Even within this case, contradictory facts are ignored.
The trial judge goes on to cite equally befuddling cases. In R v Decker, 2002 NFCA 9, the accused was found to have used his truck as a bedroom. He also had the engine running, but it only operated for the first 15 minutes of his slumber, due to his use of a remote starter which shut off the engine after this period of time. Accidental movement of the vehicle was deemed to be a limited possibility after the vehicle shut off automatically. Yet is the care and control standard that of a limited possibility of movement, or is it the elimination of the possibility entirely? This case does not make the standard clear. More inexplicably, in R v Bishop, 2002 BCPC 6, the accused also rebutted the presumption, though he was asleep in the driver’s seat of his motor vehicle. The motor was running and the radio was playing, but the accused claimed he had no place else to go for the night and intended to sleep in his car. As a result of the accused’s stated lack of intent to operate the vehicle, the court found that he was not in care or control. The fact that these circumstances very closely resemble those of Mr. LeGrow is not addressed by the trial judge in this case.
As a stand-alone judgment, the holding in LeGrow makes perfect sense. Mr. LeGrow was impaired, in the driver’s seat, and had merely pulled over to the side of the road. It was indeed possible for him to put his vehicle into operation, and this was evidenced by his retrieval of the abandoned keys to restart the engine for warmth. Yet when the care and control jurisprudence is added to the analysis, the requirements for a rebuttal of the presumption become decidedly unclear. In my view, this does not indicate that the LeGrow holding was improper; it is merely demonstrable of an undefined standard of analysis that, if continuously unaddressed, will have an effect on future cases of this nature.
Ultimately, if an impaired driving case arises in which the care and control issue is not as clear cut as that of Mr. LeGrow, the courts will be hard-pressed to justify the state of the law as it stands. Though the SCC was certainly justified in dismissing Mr. LeGrow’s application for leave, it is not yet out of the woods with regard to impaired driving jurisprudence.